By Stephen Ware, a law professor at KU, in Lawrence, Kansas.

Principles of Alternative Dispute Resolution

Principles of Alternative Dispute Resolution
Principles of Alternative Dispute Resolution, in its third edition, is a Concise Hornbook, published by West Academic. More information is available by clicking on the photo.

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Monday, November 16, 2015

Private Caucuses with Mediators

What happens in a mediation caucus? Answers from one mediator's caucuses in a study by Daniel Klerman and Lisa Klerman.

One paragraph from Inside the Caucus: An Empirical Analysis of Mediation from Within:

Parties in Lisa Klerman's mediations were always represented by lawyers. At least a day before the mediation, the lawyers ordinarily gave Ms Klerman “mediation briefs” summarizing the facts and legal issues. Lisa Klerman would typically begin the mediation by discussing the facts and underlying legal issues of the asserted claims in separate private caucuses (meetings) with each side. These communications were confidential in order to encourage the parties to be candid with the mediator. Ms Klerman would explore the strengths and weaknesses of the case with each side in order to set the stage for the parties to adjust their settlement expectations. In some cases, Ms Klerman would recommend an attorney caucus (a meeting between the mediator and the attorneys representing both sides, without their clients) to discuss disputed facts or novel legal arguments. It might be several hours before settlement numbers were discussed. Toward the end of the day, the parties may have stalled in their negotiations. If so, Ms Klerman would frequently make a “mediator's proposal” to settle the case. A mediator's proposal is a settlement proposal that comes from the mediator—not from either side—and is the number that the mediator believes both sides are most likely to accept. Although mediations are sometimes classified as facilitative or evaluative, Ms Klerman uses both approaches, as she thinks is most appropriate for each dispute. Because of her experience as an employment litigator, her evaluation of a case had substantial credibility with lawyers and their clients.

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